16-3879 Dolan v. Fairbanks Capital Corporation 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 6 th day of December, two thousand nineteen. 3 4 PRESENT: 5 ROBERT A. KATZMANN, 6 Chief Judge , 7 GUIDO CALABRESI, 8 RAYMOND J. LOHIER, JR., 9 Circuit Judges . 10

_____________________________________ 11 12 Michael T. Dolan, 13 14 Plaintiff-Appellant , 15 16 Donna M. Dolan, and family, 17 18 Plaintiff , 19 20 v. 16-3879 21 22 Fairbanks Capital Corporation, a Utah 23 corporation, 24 25 Defendant-Appellee , 26 27 PMI Mortgage Insurance Company, Walnut 28 Creek, CA, Thomas D. Basmajian, and his 29 officers, employees, and agents, Fairbanks 30 Capital Holding Corporation, a Delaware 31 corporation, 32 33 Defendants . 34

_____________________________________ 35 36 372 FOR PLAINTIFF-APPELLANT: M ICHAEL T. D OLAN , pro se, Smithtown, NY. 1 2 FOR DEFENDANT-APPELLEE: S TEVEN R. K RAMER , Eckert Seamans Cherin 3 & Mellott, LLC, White Plains, NY. 4 5 Appeal from a judgment of the United States Dist rict Court for the East ern District of New 6 York (Chen, J .). 7
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 8 DECREED that the judgment of the district court is AFFIRMED , and the case is REMANDED 9 to the district court with instructions. 10 Appellant Michael Dolan, pro se, sued Fa irbanks Capital Corporation (“FCC”) under 11 federal and state law about FCC’s conduct in servicing Do lan’s mortgage loan. The district court 12 dismissed some of Dolan’s clai ms on summary judgment with prejudice and denied his motion for 13 application of offensive collatera l estoppel and judgment as a matter of law on other claims based 14 on a state court judgment in Dolan’ s foreclosure proceedings. After tr ial, a jury concluded that he 15 had not proven his remaining claims. We assume the parties’ familiarity wi th the underlying facts, 16 the procedural history of the case, and the issues on appeal. 17 We review de novo a grant of su mmary judgment and a denial of judgment as a matter of 18 law. Stampf v. Long Island R.R. Co. , 761 F.3d 192, 197 (2d Cir. 2014) (judgment as a matter of 19 law); Sousa v. Marquez , 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment). A district court 20 “has considerable discretion in determining how to respond to communications indicating that the 21 jury is experiencing confusion.” United States v. Parker , 903 F.2d 91, 101 (2d Cir. 1990). 22 We offer the following analysis to address Dolan’s primary arguments on appeal. First, 23 Dolan was judicially estopped fro m seeking offensive collateral estoppel. In denying summary 24 judgment in favor of FCC on the ba sis of res judicata, the distri ct court had relied on Dolan’s 253 argument that FCC had not been a party in the state action and that the state court had not 1 determined whether FCC was liable to Dolan under state law. See Pegram v. Herdrich , 530 U.S. 2 211, 227 n.8 (2000). Second, summary judgment was proper on Dolan’s Real Estate Settlement 3 Procedures Act claims about tran sfer of servicing because Dolan disclaimed any “actual damages,” 4 which he was required to prove under 12 U.S.C. § 2605(f)(1). Third, the response to the jury’s 5 note requesting clarification about Dolan’s injury was within the district court’s “considerable 6 discretion.” Parker , 903 F.2d at 101. 7 That leaves, as the only significant remaining issue, Dolan’s claim of deceptive acts or 8 practices under N.Y. Gen. Bus. Law § 349. The resolution of this cl aim turns on the not 9 uncomplicated issue of whether Dolan presente d sufficient evidence that FCC’s allegedly 10 deceptive “acts or practices ha[d] a broader impact on consumers at large.” Oswego Laborers’ 11 Local 214 Pension Fund v. Marine Midland Bank, N.A. , 647 N.E.2d 741, 744 (N.Y. 1995). That 12 question being purely of state law, an d with no federal claims remaini ng, we believe th at the district 13 court should have dismissed this claim without prejudice to Do lan renewing it in state court. See 14 Oneida Indian Nation of New York v. Madison County , 665 F.3d 408, 436-37 (2d Cir. 2011). 15 We have considered all of Dola n’s remaining arguments and find them to be without merit. 16 Accordingly, we AFFIRM the judgment of the district court, VACATE the district court’s 17 dismissal of Dolan’s N.Y. Gen. Bus. Law § 349 claim, and REMAND to the district court with 18 instructions to dismiss th at claim without prejudice. 19
FOR THE COURT: 20 Catherine O = Hagan Wolfe, Clerk of Court 21 22